A warehouse worker was fired after an altercation and threats to a coworker over earlier testimony given at labour board hearings. The union grieved the termination.
While S.S. denied the allegation that he threatened anyone, the Arbitrator preferred the testimony of his accuser, a team leader at a tile distribution warehouse.
In S.S.’s version of events, the team leader asked S.S. about his circumstances while S.S. was repairing a skid at the team leader’s tile cutting work station. According to S.S., matters quickly degenerated during what he reported as a two-minute discussion about the team leader’s testimony in a previous labour board hearing. S.S. said that he had exhorted the team leader not to lie in upcoming proceedings as he had earlier and finished the conversation by calling the team leader a “fricking liar” in a loud voice.
“You had better watch out”
The team leader’s version of events differed. He testified that S. S. approached him while he was at his workstation to question him about testimony given in a previous hearing and to coach him about testimony in upcoming proceedings. According to the team leader, S.S. did not respond well to assurances of neutrality. The team leader quoted a number of escalating threats from the agitated and red-faced S.S. beginning with, “this time don’t lie,” to “you had better watch out” and “just think what will happen to you, your daughter and your wife.” The conversation ended when the team leader retreated. S.S., said the team leader, had responded to his suggestion that they quit wasting the company’s time by approaching him brandishing a reciprocating saw and saying “What about the company? What about me? F—- the company.”
In the face of diametrically opposed versions of events as to what happened at the team leader’s workstation, the Arbitrator was compelled make a decision based on the available evidence and the credibility of the two chief witnesses.
Despite some inconsistencies, the Arbitrator preferred the testimony of the team leader who testified in a “forthright manner” and was not shaken during vigorous cross-examination. For his part, S.S. did not appear or testify at the proceedings.
More than that, however, aspects of S.S.’s story did not add up, the Arbitrator said. While coworkers who witnessed the altercation were not able to hear what was said over the din in the warehouse, there was agreement that the conversation between S.S. and the team leader went on for significantly longer that the two minutes reported by S.S.
S.S.’s presence at the team leader’s workstation — even for the stated reason of repairing a skid — was questionable as was the allegation that the team leader would choose to raise the issues as alleged by S.S. By contrast, it was much more believable, the Arbitrator said, that S.S. would choose to confront the team leader about an issue S.S. was obviously deeply concerned with.
As well, transcripts of statements S.S. made to the union and presented in support of his case seemed at odds with the record.
Litany of complaints
S.S. stated that he liked his job and respected the company when in fact he was pursuing a human rights complaint against the company based on allegations of harassment and discrimination based on ancestry and place of origin. The litany of complaints, alleged incidents and documented history of S.S. becoming angry and agitated about the actions of management and “proposing to take action of an unspecified nature,” stood in marked contrast to his stated respect for the company, the Arbitrator said.
The union argued that even if S.S. had made the threats as alleged, termination was an excessive response. Despite his record of threatening legal action, S.S. had no history of violence against anyone and his fellow employees expressed no concerns about working with him. Mitigation of the penalty was appropriate, the union said, urging that the S.S. be reinstated.
The Arbitrator rejected reinstatement. “I do not think [reinstatement] constitutes a practical course of action. One of the fundamental requirements of modifying a penalty and reinstating a grievor is that there is a viable employment relationship to be maintained. An acknowledgement of fault is also a usual requirement. The grievor’s actions in his human rights complaint and his actions in the context of this arbitration persuade me that is not the appropriate course of action. The grievor has demonstrated that he does not accept the norms of the collective bargaining relationship and the legitimacy of the arbitral process. He simply refuses to accept any criticism or suggestion that anything he has done might be wrong…He blames others and alleges it is all based on discrimination and harassment directed at him. He readily makes allegations of lying against others for which he has no foundation. There is absolutely no prospect for the resumption of a viable employer/employee relationship and the grievance must therefore be dismissed.”
